from the dope-on-a-rope dept

Richard Liebowitz of Liebowitz Law Firm has had a bad couple of weeks in court. Unfortunately for him, as one of the most prolific copyright trolls, that's kind of where he makes his home. According to two recent orders handed down by two different judges, Liebowitz has filed more than 500 copyright cases in the Southern District of New York alone over the last two years, most often representing photographers.

Booth Sweet LLP -- which has gone head-to-head with other copyright trolls -- pointed out the most recent loss Liebowitz has suffered. His lawsuit is still ongoing, but the court has ordered him to post a $10,000 bond to cover the legal fees he'll be responsible for if he loses. And if a judge is ordering a bond, it's likely because the judge expects the lawsuit to end badly for the person ordered to front the cash.

The order [PDF] is an entertaining read for people who detest copyright trolls. (Hey! Welcome to Techdirt!) Liebowitz is suing Hearst Communications over the publication of a photo he says belongs to his client, Ray Reynolds. Reynolds claims he gave the photo to the Trump campaign but expressly forbade its release to anyone else. The photo was given to Elle magazine to accompany an article about Melania Trump. Reynolds sued, and apparently chose poorly when it came to representation.

It's nothing but bad news for the prolific troll. The order begins with a recounting of Liebowitz's lies/omissions/failures.

The complaint in this action alleged that the defendant published plaintiff’s photograph without a license or plaintiff’s permission. It did not reveal that the plaintiff had in fact provided the photograph to the Campaign.

At the initial conference held on December 8, when asked how the defendant could have gotten the photograph, Mr. Liebowitz did not explain that the plaintiff had actually given the photograph to the Campaign. Instead, he speculated that Hearst may have taken the photograph from an article that the plaintiff had licensed to publish the photograph.

That's already a bad start, but a footnote makes it even worse.

Mr. Liebowitz failed to appear at the pretrial conference scheduled for December 1, despite being required as principal trial counsel to appear at the conference. Instead, without seeking prior permission to do so, Mr. Liebowitz sent an associate.

The court then recounts the facts. The photos are registered with the copyright office. The plaintiff asserts he gave them to the Trump Campaign for it to use for campaign-related stuff. Hearst maintains the Trump Campaign gave Elle the photo to use with the Melania Trump article. As the court points out, this would appear to be in line with the photographer's demands: the photo was used in an article put together with the assistance of the Trump Campaign. No violation of any contract, oral or written. And there appears to be no contract of any sort. Just the photographer's claim Elle engaged in copyright infringement by using it on its website. Having nothing in writing will make this case almost impossible to win. The court quotes from copyright law:

All grants of exclusive rights in a copyright must be made in writing.

The court doesn't say the plaintiff has no chance of winning this suit. But it does say the chances of him winning the suit are barely above zero.

Although he was not forthcoming in either the complaint or when first addressing the Court at the initial pretrial conference, Mr. Liebowitz understood before filing this lawsuit that the plaintiff gave the photograph to the Campaign for its use and that the photograph had been used in a story with which the Campaign was obviously cooperating. Among other things, Mrs. Trump is quoted in the article. There is no indication in the record that Mr. Liebowitz has ever learned of any explicit or even implied agreement between the plaintiff and the Campaign that restricted the Campaign’s use of the photograph in any way. His client only claims that he did not intend to allow the Campaign to share the photograph, but has provided no evidence of an agreement to that effect between him and the Campaign. If Mr. Liebowitz had spoken with defense counsel before filing this action, he would have had occasion to consider all of the facts recited above and to consider whether it was appropriate to sue Hearst at all, or whether he should sue not only Hearst but also the Campaign.

The court notes the 500 cases Liebowitz has filed in this court over the last two years. It also notes his recent sanctioning by this court (more on that in a minute). It then points out several of his cases have been dismissed for being frivolous. On top of that, the court says it's not the only court that has required Liebowitz to pay up front for impending lawsuit losses.

Multiple courts, on their own initiative, have ordered Mr. Liebowitz to show cause why he should not be required to post security for costs as a condition of proceeding further with an action.

Hearst wanted a $105,000 bond. The judge trims it down to 10% of this demand, noting Liebowitz's self-declared insolvency.

The plaintiff asserts that he lives paycheck to paycheck and cannot pay a bond.

Of course, the court has no reason to believe this assertion, considering Liebowitz's past performance.

Given the plaintiff’s impecuniosity, the immediate imposition of bond in an amount limited to $10,000 is appropriate. The defendant will be given an opportunity to take discovery of the plaintiff’s financial condition and the parties will be heard as to whether any additional bond requirement should be imposed in this case.

Then it smacks him one more time before signing off.

Mr. Liebowitz also argues that plaintiff has not willfully disobeyed court orders, obstructed discovery, or increased the cost of litigation. This is demonstrably false. Mr. Liebowitz failed to comply with orders in this litigation, as he has in other lawsuits. Further, the failure to include the Campaign as part of this suit, or to even mention the plaintiff’s relationship with the Campaign in the complaint, will inevitably increase the cost of litigation.

As noted in this decision, Liebowitz has been sanctioned by SDNY courts previously. Via The Trademark Blog, here's Liebowitz being threatened with yet another sanctioning by an SDNY judge. This order [PDF] was handed down less than a month ago and it stems from the plaintiff voluntarily dropping the lawsuit as soon as the defendant filed a motion to dismiss.

It starts out -- like the one above -- with a footnote detailing Liebowitz's failure to comply with rules he's surely familiar with, given the large number of lawsuits he's filed in this district.

The notice of the initial pretrial conference contains explicit language that the plaintiff is to “notify all attorneys in this action by serving upon each of them a copy of” the notice and the Court’s individual practices. The plaintiff is “to file proof of such notice with the Court.” The plaintiff failed to comply with this notice; the electronic case filing system (“ECF”) contains no entry indicating that the plaintiff duly served defendant’s counsel with the notice. This is not the first such failure on the part of plaintiff’s counsel before this Court and other courts in this district.

Then the court notes the lawsuit -- filed in New York against a small Idaho publication -- contains nothing indicating this court should have jurisdiction to hear the case. The defendant's motion to dismiss on these grounds prompted a quick withdrawal of the lawsuit. The court finds this suspicious, but declines to award legal fees to the defendant.

Here, the plaintiff voluntarily dismissed his claims after the defendant served a Rule 68 offer and filed a motion to dismiss for lack of personal jurisdiction. In opposition to this motion for fees, the plaintiff does not suggest that he had any non-frivolous reason to believe that there was personal jurisdiction over the defendant in this district. Based on the record before the Court, it appears that the filing in this district was “frivolous, unreasonable, or groundless.” CRST, 136 S.Ct. at 1652 (citation omitted). Plaintiff’s counsel, Richard Liebowitz, is a known copyright “troll,” filing over 500 cases in this district alone in the past twenty-four months. Thus, whether or not an attorney’s fee award could be properly awarded against the plaintiff under Section 505, such an award against plaintiff’s counsel may be appropriate in an exercise of this Court’s inherent power.

No fee shift, but there's a warning suggesting Liebowitz could be on the hook for fees in the future, especially if he decides to keep dumping cases into this district.

In an exercise of this Court’s discretion it declines to award fees on this occasion. If Mr. Liebowitz files any other action in this district against a defendant over whom there is no nonfrivolous basis to find that there is personal jurisdiction, the outcome may be different.

Nothing seems to have slowed Liebowitz's troll but perhaps back-to-back bench slaps might, especially if the lawyer is so broke he can't rub two settlements together. Someone working on contingency with a horrendous court track record probably doesn't have tons of cash to front to keep his speculative invoicing racket afloat.

from the just-saying... dept

Joe Mullin has the details of the latest in a long line of setbacks for John Steele and Prenda Law, in which the Ninth Circuit appeals court has rejected Team Prenda's attempt to reduce the bond amount that they need to put up, consolidated the various appeals, and set a briefing schedule for later this year. The ruling is short and sweet and basically is an indication that the appeals court isn't interested in Prenda's usual game of trying anything and everything to create a distraction. But, what caught my attention, and which I hadn't realized before, is that it appears that the three judge panel handling the appeal is headed up by Judge Alex Kozinski (see update below) -- perhaps one of the most well known and entertaining judges on the bench today. We've written about Kozinski many times before -- and while I don't always agree with Kozinski (to be fair: I very often do agree with him), he is almost certainly the most entertaining, both when speaking live and in his rulings. And, equally as important, he's one judge who really does seem to make sure he really understands what's going on, beyond the superficial level that we've seen elsewhere. Given that, the Kozinski-fanboy in me is already anticipating the turns of phrase that Kozinski will spin in any eventual ruling involving Prenda... District court judge Otis Wright's original ruling against Team Prenda was impressive, as many folks have acknowledged, but there's an opportunity here for Judge Kozinski to produce a sequel that will be a delight. Update: Bah, procedural error on my part. This is the motions panel, not the merits panel, meaning that we don't yet know which three judge panel will handle the actual case. Let's just hope that Kozinski is on it, though...

from the keep-trying dept

With Judge Otis Wright telling Team Prenda to pay significantly more on the bond to cover Morgan Pietz's legal fees in the big case in California where Prenda got called out for what the judge suggested were racketeering violations, Paul Duffy and Prenda are fighting back in typical fashion. They've gone to the appeals court to whine about why they shouldn't have to pay, why Pietz shouldn't get any money and about all the reasons they think Judge Wright is wrong. But there's also an interesting tidbit in Duffy's affidavit:

Prenda Law is currently winding down its operations and is in the process of dismissing its remaining cases pursuant to the instructions of its clients.

It later says that Prenda Law has not filed any new copyright infringement cases in several months. Of course, this completely ignores the fact that Duffy and what appears to be basically the same crew of people immediately flipped the switch to a new firm, called the Anti-Piracy Law Group, which has continued to do the same basic shakedown game, even as they were being hit with sanctions and more for the same game under the Prenda label. Funny how Duffy leaves that part out...

from the check-for-john-doe dept

We were a bit surprised that Prenda Law's Paul Duffy actually filed a bond to cover the amount that Judge Otis Wright ordered Team Prenda to pay in legal fees for their shenanigans. To date, Team Prenda seems to go out of its way to play games and to avoid doing what the court is actually asking, so it seemed like a bit of a departure to see them actually file a bond (if a few days late, and with some protest). But, apparently, we should never underestimate Prenda's game-playing.

The lawyer opposing them, Morgan Pietz, has responded to the bond asking the court not to accept it until a variety of changes are made, and which highlights the type of petty activity that Prenda is well known for engaging in. The most brazen, perhaps, is the fact that Duffy made the bond be in the name of "John Doe" for the unidentified client, but Pietz points out that, given that's not the Doe's real name, it's possible that they may get a check that can't be cashed. That's the kind of thing that has Prenda's name written all over it -- doing something that pretends to be helpful, when inside they're laughing about the "trick" they pulled on people.

That's not all. Duffy, in his filing, had said that Pietz had not been cooperative in having a "meet and confer" to agree on what the bond amount should be. But Pietz tells a very different story, and provides the email evidence.

The first undersigned counsel heard about a bond, or payment, from any
Prenda party (with the exception of Mr. Gibbs; his motions will be addressed by
separate response) was on Monday May 20, 2013, when Paul Duffy sent a short
email on the subject, offering to post a bond in the amount of 125% of the amount
awarded in the Sanctions Order. Undersigned counsel dutifully responded later that
day (to all parties), outlining a number of concerns about the amount and conditions
that should attach to a supersedeas bond, reiterating concerns raised in the appellate
response papers regarding no stay of the non-monetary aspects of this Court’s order,
and requesting that Prenda respond with their views on the substantive topics raised.
Exhibit 1.

On May 21, 2013, this Court issued an Order Denying Ex parte Application
for Stay of Enforcement ; Order to Show Cause Re Attorney’s-Fee Award. ECF No.
164. The next day, after close of business on May 22, 2013, still not having heard
anything regarding payment or a bond, undersigned counsel again emailed all
Prenda parties in another attempt to meet and confer regarding appeal bond details.
Exhibit 1. In response to the May 22 query attempting to spur further discussion on
the several points raised by undersigned counsel previously on the bond issue, Mr.
Duffy wrote back “You had no substantive points. If you think of some and can
articulate them coherently I would be glad to consider them. Thanks for thinking of
me.” Id. Shortly after receiving Mr. Duffy’s foregoing email, undersigned counsel
pointed out to everyone that such a response was not very helpful, and invited the
rest of the Prenda parties to respond in substantive fashion. Nobody did. Mr. Duffy,
however, did write the whole group one more time, in nonsensical and vaguely
threatening fashion, to indicate that has apparently made a conscious decision
to send undersigned counsel’s email messages to the SPAM folder. Exhibit 1

In case you can't look at the exhibit, the email that Duffy wrote back to Pietz -- which was clearly not an automated response -- was the following:

Thanks for your message Sir/Madam! Unfortunately, due to your inappropriate language and messages,
which are within the access of my young children, I must place you in my "spam" filter. Unfortunately, I delete
such messages daily without reading them. I wish you a speedy recovery, and make it a GREAT day!

Among the other problems with the bond, is that only Duffy has signed onto it, and as Pietz points out, since there are many different parties, each appealing separately, it's not at all clear as to what happens if some are exonerated, while others are found guilty. And, of course, Pietz argues that the amount is way too low, because it should take into account the likely cost of the appeal as well. Oh, and Pietz also wants it to be clear that Team Prenda can't get out of paying the bond by declaring bankruptcy.

Basically, it looks like Team Prenda simply can't resist playing its games -- once again, seeming to think that it's so much smarter than everyone else, that it can run verbal rings around those exposing their efforts.

Update: And... Judge Wright has just basically agreed with Pietz, conditionally granting the bond, but only if Duffy makes a bunch of changes to deal with the claims that Pietz brought up, and also says they need to add another bond for $135,933.66, to get the total up to $237,583.66 which is the amount Pietz argued was proper given the circumstances.